Karr v. Berryhill
Filing
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ORDER granting 15 Motion for Judgment on the Pleadings and remanding for calculation of benefits; denying 16 Motion for Judgment on the Pleadings. The Clerk of the Court is directed to close the case. Signed by Hon. H. Kenneth Schroeder Jr. on 12/10/2018. (KER)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JASON W. KARR,
Plaintiff,
17-CV-0435Sr
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
DECISION AND ORDER
As set forth In the Standing Order of the Court regarding Social Security
Cases subject to the May 21, 2018 Memorandum of Understanding, the parties have
consented to the assignment of this case to the undersigned to conduct all
proceedings, including the entry of final judgment, as set forth in 42 U.S.C. § 405(g).
Dkt. #18.
BACKGROUND
Plaintiff’s application for disability insurance benefits and supplemental
security income (“SSI”),was granted on November 21, 1991, with a disability onset date
of December 31, 1988, when plaintiff was 19. Dkt. #8, p.129. Continuing disability
medical reviews dated January 16, 1993 and March 28, 1998 determined that plaintiff
continued to be disabled due to attention deficit hyperactivity disorder (“ADHD”), and
personality disorder with narcissistic and dependent features. Dkt. #8, pp.129 & 141.
During this time period, plaintiff “worked at a variety of jobs” and exhausted his trial
work period. Dkt. #8, p.141.
On September 9, 2002, the Social Security Administration (“SSA”),
determined that plaintiff’s disability had ceased, with benefits terminating as of
November of 2002. Dkt. #8, p.129. On appeal, by decision dated March 30, 2006,
Administrative Law Judge (“ALJ”), Nancy Lee Gregg determined that plaintiff’s severe
impairments were well controlled with Ritalin such that plaintiff was able to perform work
at all exertional levels and that he was able to understand, remember, follow, carry out
and complete simple, detailed and some complex tasks independently in an occupation
that did not require significant interaction with the general public. Dkt. #8, p.142. As a
result, the ALJ found plaintiff capable of performing his past relevant work as a
commercial and industrial cleaner, store laborer and shipping and receiving clerk. Dkt.
#8, pp.139-40.
Plaintiff filed an application for SSI on January 5, 2010, alleging disability
beginning January 10, 2003, due to ADHD, learning disabilities and mental health
problems. Dkt. 8, pp.387 & 481. A hearing was held before ALJ Brian Kane on March 1,
2012, at which plaintiff, represented by counsel, and an impartial vocational expert,
Julie Andrews, appeared and testified. Dkt. #8, pp.41-95. Plaintiff testified that he
wanted to work, and had attempted numerous jobs, but “had difficulties with everything
[he] tried.” Dkt. #8, p.58. He explained that sometimes he had difficulty doing the job,
sometimes he lost interest, and sometimes he didn’t do it right. Dkt. #8, p.58. He
testified that he didn’t know what he could do, speculating that he needed to “find a job
where I could either be on my own or left alone, on my own, or given a set of
instructions that I can follow and go with.” Dkt. #8, p.58. Plaintiff further testified that
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I’ve done multiple jobs, and they last so long, or something
happens. Or I get in trouble, or I just walk off a job - lack of
interest - or issues with other employees, or things like that.
Dkt. #8, p.88. He also noted another job where his “attention span caused some . . .
significant damage” to the truck as he was delivering a mobile storage unit. Dkt. #8,
p.56.
ALJ Kane rendered a determination that plaintiff was not disabled on April
24, 2012 (Dkt. #8, pp.149-157), but the Appeals Council remanded the matter for
further consideration of plaintiff’s residual functional capacity (“RFC”), in light of the
ALJ’s determination that plaintiff had moderate limitations in concentration, persistence
or pace and should avoid more than occasional interaction with co-workers and the
general public. Dkt. #8, p.163. More specifically, the Appeals Council determined that
“the assessed residual functional capacity assessment does not adequately account for
the claimant’s mental impairments because it has no limitations corresponding to the
moderate limitations in concentration, persistence or pace.” Dkt. #8, p.163.
A second hearing was held before ALJ Kane on August 21, 2015, at
which plaintiff, represented by counsel, and an impartial vocational expert, Dawn
Blythe, testified. Dkt. #8, pp.99-125. Plaintiff testified regarding his job delivering 164
Pennysavers, stating that he incorporates the inserts into the pennysavers and delivers
them weekly on foot, but had “messed it up a few times” and had to go back and fix it.
Dkt. #8, pp.105 & 120. He noted that he was often distracted during this process and
divided the task over the course of a day. Dkt. #8, p.123. The vocational expert
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recognized that plaintiff had “a lot of like just few-week jobs or a couple-month jobs.”
Dkt. #8, p.109. Plaintiff agreed that he has had more jobs than he could count. Dkt. #8,
p.110. The ALJ asked the vocation expert if an individual with plaintiff’s age, education
and work experience who was limited to semi-skilled work would be able to engage in
his past relevant work. Dkt. #8, p.111. The vocational expert answered that such an
individual could perform plaintiff’s past relevant work as a laborer, cleaner or cashier.
Dkt. #8, p.111. Plaintiff’s attorney asked the vocational expert if her opinion would
change if plaintiff was “off task 20 percent of the day.” Dkt. #8, p.111. The vocational
expert agreed that plaintiff would not be able to sustain any employment if he was off
task 20 percent of the day. Dkt. #8, p.111.
ALJ Kane rendered a determination that plaintiff was not disabled on
March 7, 2016. Dkt. #8, pp.26-30. Specifically, the ALJ made the following findings with
regard to the five-step sequential evaluation: (1) plaintiff had not engaged in substantial
gainful activity since applying for benefits on January 5, 2010; (2) plaintiff’s ADHD
constituted a severe impairment; (3) plaintiff’s impairment did not meet or equal any
listed impairment in that his activities of daily living were not restricted and he had only
mild difficulties with social functioning, moderate difficulties in concentration,
persistence or pace, and no episodes of decompensation of extended duration; (4)
plaintiff retained the capacity to perform a full range of semi-skilled or unskilled work at
all exertional levels; and (5) plaintiff was therefore capable of performing his past
relevant work as a commercial cleaner and cashier. Dkt. #8, pp.28-33.
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The Appeals Council denied plaintiff’s request for review on March 21,
2017. Dkt. #8, p.6.
On May 18, plaintiff commenced this action seeking review of the
Commissioner of Social Security’s (“Commissioner’s”), final decision. Dkt. #1.
DISCUSSION AND ANALYSIS
Plaintiff argues that the ALJ’s RFC failed to account for the fact that
plaintiff’s treatment providers “consistently observed plaintiff as being easily distracted,
lacked attention and concentration, memory, impulsive, scattered and difficult to follow,
diminished judgment and insight, unable to work at consistent pace, and difficulty with
others.” Dkt. #15-1, p.27. Moreover, plaintiff argues that his history demonstrates an
inability to sustain full-time competitive work on a regular and continuous basis. Dkt.
#15-1, p.29.
The Commissioner argues that the ALJ properly weighed the opinions of
plaintiff’s treating sources to determine that plaintiff retained the RFC to perform his
past relevant work. Dkt. #16-1, pp.20-27.
“In reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA’s conclusions were supported by substantial evidence in
the record and were based on a correct legal standard.” Talavera v. Astrue, 697 F.3d
145, 151 (2d Cir. 2012). Substantial evidence is defined as “such relevant evidence as
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a reasonable mind might accept as adequate to support a conclusion.” Moran v. Astrue,
569 F.3d 496, 501 (2d Cir. 2009). If the evidence is susceptible to more than one
rational interpretation, the Commissioner’s determination must be upheld. McIntyre v.
Colvin, 758 F.3d 146, 149 (2d Cir. 2014). “Where an administrative decision rests on
adequate findings sustained by evidence having rational probative force, the court
should not substitute its judgment for that of the Commissioner.” Yancey v. Apfel, 145
F.3d 106, 111 (2d Cir. 1998).
To be disabled under the Social Security Act (“Act”), a claimant must
establish an inability to do any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than
twelve months. 20 C.F.R. § 404.1505(a). The Commissioner must follow a five-step
sequential evaluation to determine whether a claimant is disabled within the meaning of
the Act. 20 C.F.R. § 404.1520(a). At step one, the claimant must demonstrate that he is
not engaging in substantial gainful activity. 20 C.F.R. § 404.1520(b). At step two, the
claimant must demonstrate that he has a severe impairment or combination of
impairments that limits the claimant’s ability to perform physical or mental work-related
activities. 20 C.F.R. § 404.1520(c). If the impairment meets or medically equals the
criteria of a disabling impairment as set forth in Appendix 1 of Subpart P of Regulation
No. 4 (the “Listings”), and satisfies the durational requirement, the claimant is entitled to
disability benefits. 20 C.F.R. § 404.1520(d). If the impairment does not meet the criteria
of a disabling impairment, the Commissioner considers whether the claimant has
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sufficient residual functional capacity (“RFC”), for the claimant to return to past relevant
work. 20 C.F.R. § 404.1520(e)-(f). If the claimant is unable to return to past relevant
work, the burden of proof shifts to the Commissioner to demonstrate that the claimant
could perform other jobs which exist in significant numbers in the national economy,
based on claimant’s age, education and work experience. 20 C.F.R. § 404.1520(g).
The ALJ’s determination that plaintiff is capable of returning to his past
relevant work is not supported by substantial evidence because it fails to account for
the ALJ’s determination that plaintiff has moderate difficulties in concentration,
persistence or pace.
In the instant case, despite being remanded by the Appeals Council for
consideration of how plaintiff’s RFC is affected by his mental impairments with respect
to concentration, persistence or pace (Dkt. #8, p.163), the ALJ’s assessment of
plaintiff’s RFC fails to address the affect of plaintiff’s moderate difficulties in
concentration, persistence or pace upon his ability to perform his past relevant work or
engage in other substantial gainful activity. When making findings about a plaintiff’s
RFC, an ALJ may not avoid a detailed assessment regarding the degree of functional
limitation resulting from a mental impairment by simply stating that the claimant can
perform simple, unskilled work. Karabinas v. Colvin, 16 F. Supp.3d 206, 215 (W.D.N.Y.
2014) (collecting cases). Moreover, an ALJ’s hypothetical to a vocational expert “should
explicitly incorporate any limitations in concentration, persistence and pace.” McIntyre v.
Colvin, 758 F.3d 146, 152 (2d Cir. 2014). “If a hypothetical question does not include all
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of a claimant’s impairments, limitations and restrictions, or is otherwise inadequate, a
vocational expert’s response cannot constitute substantial evidence to support a
conclusion of no disability.” Kuleszo v. Barnhart, 232 F. Supp.2d 44, 57 (W.D.N.Y.
2002). The failure to incorporate such limitations is only harmless error if: (1) medical
evidence demonstrates that a claimant can engage in simple, routine tasks or unskilled
work despite limitations in concentration, persistence, and pace, and the challenged
hypothetical is limited to include only unskilled work; or (2) the hypothetical otherwise
implicitly accounted for a claimant’s limitations in concentration, persistence and pace.
McIntyre, 758 F.3d at 152.
As the ALJ determined that plaintiff could perform semi-skilled work and
the ALJ’s only question to the vocational expert was whether an individual with plaintiff’s
age, education and work experience who was limited to semi-skilled work would be able
to engage in his past relevant work (Dkt. #8, p.111), the hypothetical cannot be
considered harmless error. In contrast, the question posed by plaintiff’s attorney, to wit,
whether plaintiff would be able to sustain employment if he was off task 20 percent of
the day, was based upon assumptions about plaintiff’s ability to concentrate which is
amply supported by the medical evidence. For example:
! In 2009, Dr. Patil opined that plaintiff was moderately limited in his
ability to maintain concentration and interact appropriately with others and very limited
in his ability to function at a consistent pace in a work setting (Dkt. #8, p.619);
! In 2010 Dr. Patil opined that plaintiff was moderately limited in his ability
to maintain concentration, make simple decisions, interact appropriately with others,
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maintain socially appropriate behavior and function in a work setting at a consistent
pace (Dkt. #8, pp.621, 623, 626);
! In 2011, Licensed Clinical Social Worker (“LCSW”),1 Paula Callahan
opined that plaintiff was moderately limited in his ability to understand and remember
instructions, make simple decisions, interact appropriately with others and maintain
socially appropriate behavior and very limited in his ability to maintain concentration and
function at a consistent pace in a work setting (Dkt. #8, p.618);
! In 2012, Ms. Callahan opined that plaintiff was moderately limited in his
ability to understand and remember instructions, interact appropriately with others and
maintain socially appropriate behavior and very limited in his ability to maintain
concentration, noting that plaintiff was easily distracted, gets easily frustrated and has
problems with authority figures (Dkt. #8, p.628);
! In 2013 Dr. Racaniello observed that plaintiff had “a tendency to go off
on tangents” and was “difficult to follow” at times (Dkt. #8, p.750);
! In 2014, Dr. Prasad observed that plaintiff “rambled;” “talks with some
mannerism and shows some looseness of association” (Dkt. #8, p.759);
! In 2014, Dr. Ortega opined that plaintiff was
hard to follow. He gets easily scattered in one to one.
Keeping an intelligent conversation with him is usually
difficult due to the inability to stay on one topic. . . . He gets
easily unfocused.
(Dkt. #8, p.767);
1
Although licensed clinical social workers are not acceptable medical sources entitled to
controlling weight, the ALJ may not disregard their opinion solely on that basis, but must
consider the treatment relationship, length and frequency of examinations, the evidence
supporting the opinion and its consistency with the record as a whole in deciding the amount of
weight to give such opinions. Martino v. Commissioner, __ F.Supp.3d __, 17-CV-1071, 2018
WL 5118318, at *8 (W.D.N.Y. Oct. 19, 2018).
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! In 2015, Licensed Master Social Worker Diane Porcelli, plaintiff’s
Medicaid Service Coordinator for approximately nine years, opined that plaintiff
is very disorganized in his thinking and behavior. Unable to
maintain focus when conversing, Jason usually switches
from topic to topic quickly and within a matter of a few
minutes. While he is articulate and appears to have many
strengths, his thought process is highly scattered. It is
doubtful that he would be able to concentrate on one task or
be at all productive in a structured environment. He has
much difficulty in explaining things since he changes topics
so quickly and must be constantly redirected back to the
original topic, which he believes he has already dealt with
adequately. In the time that I have know Jason he has been
unable to fully recount a story or situation he was involved in
without significant redirection during the conversation. It is
easy for the listener to get lost and confused when listening
to him. Jason is also impulsive and easily distracted by
anything that is going on around him. He seems to be
preoccupied with everything that is external to him and
verbalizes such in any one conversation.
(Dkt. #8, pp.662-63); and
! In 2015, Dr. Ortega noted that plaintiff
is still taking his Ritalin . . . He is still scattered and
unfocused. He is redundant and perseverative. I don’t see
any depression or anxiety, at least no more than usual. I
don’t see any mania. He is in full reality contact. He needs a
lot of repetition and redirection. I tend to believe he does
have ADHD which keeps him from focusing or
understanding input given, as it seems to take a while.
Dkt. #8, p.790. Moreover, a consultative psychiatric evaluation by Dr. Lin on April 28,
2015 observed that plaintiff “[a]ppeared to be moderately impaired due to distractibility”
and “appeared to have significant difficulty concentrating during conversations.” Dkt. #8,
p.715.
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“Where the existing record contains persuasive proof of disability and a
remand for further evidentiary proceedings would serve no further purpose, a remand
for calculation of benefits is appropriate.” White v. Comm’r, 302 F. Supp.2d 170, 174
(W.D.N.Y. 2004), quoting Martinez v. Commi’r, 262 F. Supp.2d 40, 49 (W.D.N.Y 2003).
Such a determination is particularly appropriate where, as here, a matter has already
been remanded and the ALJ failed to address the issue identified for reconsideration.
Peach v. Berryhill, No. 17-CV-201, 2018 WL 4140613, at *5 (W.D.N.Y. Aug. 30, 2018).
Given the consistency of multiple professional observations and opinions over a lengthy
period of time, “substantial evidence on the record as a whole indicates that [plaintiff] is
disabled and entitled to benefits.” Bush v. Shalala, 94 F.3d 40, 46 (2nd Cir. 1996).
CONCLUSION
Based on the foregoing, plaintiff’s motion for judgment on the pleadings
(Dkt. #15), is granted and the case is remanded for calculation of benefits; and the
Commissioner’s motion for judgment on the pleadings (Dkt. #16), is denied.
The Clerk of the Court is directed to close this case.
SO ORDERED.
DATED:
Buffalo, New York
December 10, 2018
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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